Mark Scott, Relator,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0732

Mark Scott,
Relator,

vs.

Artistic Finishes, Inc.,
Respondent,

Department of Employment and Economic Development,
Respondent.

Filed February 25, 2019
Affirmed
Cochran, Judge

Department of Employment and Economic Development
File No. 36161710-3

Mark Scott, Coon Rapids, Minnesota (pro se relator)

Artistic Finishes, Inc., Roseville, Minnesota (respondent employer)

Lee B. Nelson, Department of Employment and Economic Developmen t, St. Paul,
Minnesota (for respondent department)

Considered and decided by Hoote n, Presiding Judge; Rodenberg, Judge; and
Cochran, Judge.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
Relator Mark Scott challenges th e unemployment law judge’s (ULJ) determination
that he is ineligible for unemployment benefits because he was discharged for employment
misconduct. We affirm.
FACTS
Scott was employed full-time with Artistic Finishes, Inc. (Arti stic Finishes) as a
special-finishes operator for several years. Artistic Finishes has an attendance policy that
states employees are expected to report to work as scheduled an d are required to call the
employer prior to their shift if they are going to be late or miss a day of work. During the
course of his employment, Scott had a number of unplanned absen ces, including arriving
late, leaving early, and not coming to work. In December 2017, Artistic Finishes
discharged Scott due to attendanc e issues. Scott applied for u nemployment benefits and
was determined ineligible because he was discharged for employm ent misconduct. He
appealed this determination, and a hearing was held before a ULJ.
At the hearing, the ULJ heard testimony from Scott and employee s of Artistic
Finishes, including the director of human resources, a human-re sources specialist, and a
production manager. The director of human resources testified that Scott had numerous
unplanned, unexplained absence s during the period from May 2017 through December
2017. The human-resources spec ialist testified that Scott had been approved for leave
under the Family and Medical Leave Act (FMLA) from July 2016 th rough July 2017 to
provide assistance to his mother-in-law who had been diagnosed with cancer. A production

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manager testified that when an employee calls to let the employer know that the employee
will be late or will not be at work on a given day, the absence is recorded. The manager
also testified that if the employee gives a reason for the abse nce, then the reason is
documented as well. The ULJ r eceived into evidence documentati on maintained by
Artistic Finishes recording Scott’s absences and the reason, if any, he gave for each
absence. The ULJ also received into evidence documentation regarding a verbal warning
that Scott received from his manager in June 2017 about attendance issues and a note Scott
signed in October 2017 indicating that a manager had warned him that any more unplanned
absences would result in termination. The human-resources director testified that, although
Scott was terminated for excessive unplanned absences, Artistic Finishes did not consider
any absences due to illness or FMLA leave in its decision.
At the hearing, Scott acknowledged that he was absent on a numb er of days—
arriving late, leaving early, or missing work entirely—but testified that he always provided
a reason to his employer when he was absent. He stated that ma ny of his absences were
due to his own health issues, his daughter’s illness, or assist ing his ill mother-in-law. In
response to questioning from the ULJ, Scott agreed that he was late on several dates but
did not attribute those absences to illness or FMLA leave.
The ULJ found that Scott had excessive unplanned absences for reasons unknown,
these absences constituted employment misconduct, and therefore Scott was ineligible for
unemployment benefits. In doing so, the ULJ resolved all factu al disputes regarding the
reasons for Scott’s absences in favor of the employer. She bas ed this decision on the
employer’s witnesses’ testimony and the employer’s written docu mentation. The ULJ

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found that the employer’s witnesses were more credible than Scott because the employer’s
witnesses were “more direct, straightforward, and consistent.” In contrast, the ULJ did not
credit Scott’s testimony because it was “self-serving, less pla usible, and, at times,
conflicting and uncertain.” Scott sought reconsideration and the ULJ affirmed her previous
decision.
D E C I S I O N
Scott argues that the ULJ erred in finding him ineligible for unemployment benefits
based on employment misconduct. When reviewing a ULJ’s decisio n, this court may
affirm the decision of the ULJ, remand the case for further pro ceedings, or reverse and
modify the decision if the substantial rights of the relator ha ve been prejudiced because,
among other things, the decision is affected by an error in law o r i s u n s u p p o r t e d b y
substantial evidence. Minn. Stat. § 268.105, subd. 7(d) (2018).
An employee who is discharged for employment misconduct is inel igible for
unemployment benefits. Minn. Sta t. § 268.095, subd. 4(1) (2018 ). Employment
misconduct is defined as “any intentional, negligent, or indiff erent conduct, on the job or
off the job that displays clearly : (1) a serious violation of t he standards of behavior the
employer has the right to reasonably expect of the employee; or (2) a substantial lack of
concern for the employment.” Minn. Stat. § 268.095, subd. 6(a) (2018). But absence
because of illness or an immedi ate family member’s illness with proper notice t o t h e
employer is not misconduct. Minn. Stat. § 268.095, subd. 6(b)( 7), (8) (2018) (emphasis
added).

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Whether an employee committed employment misconduct is a mixed question of
fact and law. Stagg v. Vintage Place Inc. , 796 N.W.2d 312, 315 (Minn. 2011). Factual
findings regarding an employee’s conduct are viewed in the ligh t most favorable to the
ULJ’s decision and will not be disturbed as long as they are substantially supported by the
record. Peterson v. Nw. Airlines, Inc. , 753 N.W.2d 771, 774 (Minn. App. 2008), review
denied (Minn. Oct. 1, 2008). Whether the act committed by the employ ee constitutes
misconduct is a question of law that we review de novo. Id.
Scott argues that the ULJ erred in finding that he had excessive unplanned absences
constituting employment misconduct. He maintains that his atte ndance issues were
primarily due to his own health problems and taking FMLA leave to care for his
mother-in-law while she was sick. He also asserts that Artistic Finishes was aware that he
needed to take time off for these reasons. In essence, Scott is challenging the ULJ’s finding
that he was absent from work for unknown reasons on a number of occasions.
W e f i r s t c o n s i d e r w h e t h e r t h e r e c o r d s u p p o r t s t h e U L J ’ s f i n d i n gs that many of
Scott’s absences between May 2017 and December 2017 were for unknown reasons. We
then consider whether Scott’s absences constitute employment mi sconduct as defined by
Minn. Stat. § 268.095 (2018), making him ineligible for unemployment benefits.
The ULJ’s findings regarding Scott’s absences are substantially supported by the
record. The employer presented documentation of Scott’s absenc es and any proffered
reason for those absences. According to the production manager’s testimony, if Scott had
given the employer a reason for his absence, such as illness or FMLA leave, it would have
been included in those documents. The documents reflect that, although Scott was absent

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on several days due to FMLA leav e or illness, there were other numerous occasions
between May 2017 and December 2017 when he was late, left early , or missed work
entirely and did not provide a reason for his absence. Scott conceded that he was late seven
times for unknown reasons. The employer’s witnesses also testified that Scott was absent
for unknown reasons on many occasions. To the extent that there is conflicting testimony
in the record between the employer’s witnesses and Scott regarding whether Scott provided
a reason for certain absences, the ULJ found the employer’s witnesses to be more credible.
Because this court defers to credibility determinations made by the ULJ, we conclude that
the ULJ did not err in finding that Scott was absent for unknow n reasons on the dates in
question. Peterson, 753 N.W.2d at 774. Accordingly, the record substantially sup ports
the ULJ’s findings that Scott was late, left early, or did not come to work numerous times
for unknown reasons between May 2017 and December 2017.
Having concluded that the ULJ’s findings are substantially supported by the record,
we must now determine whether these findings constitute employm ent misconduct. An
employer has the right to expect employees to work when scheduled. Stagg, 796 N.W.2d
at 316. If, under the circumstances, an employee’s absenteeism amounts to a serious
violation of the standards of behavior an employer has the righ t to expect, the employee
has committed employment misconduct. See id. But if the absence is due to the
employee’s or an immediate fami ly member’s illness or injury, and the employee gives
proper notice to the employer, he does not commit employment mi sconduct. Minn.
Stat. § 268.095, subd. 6(b)(7), (8).

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Here, there is a serious violation of the employer’s standards of behavior. In this
case, Scott had ongoing attendance problems. He was late to wo rk for unknown reasons
on seven occasions between May 1, 2017 and October 12, 2017. H e also left work early
for unknown reasons on May 24, July 14, October 5, and November 28. Scott missed work
entirely for unknown reasons on Ma y 3 and May 30, and did not c ome to work on
October 3 and December 28 due to c ar trouble. Despite warnings in June and October,
Scott’s attendance issues persisted until he was discharged on December 28, 2017.
Because the record shows a serious violation of the employer’s expectation that Scott report
to work as scheduled, we conclude that Scott’s actions constitute employment misconduct.1
See Stagg, 796 N.W.2d at 317 (concluding t here was misconduct when the e mployee
violated the attendance policy on five occasions). 2 In sum, the ULJ properly determined
that Scott is ineligible for unemp loyment benefits because he w as discharged due to
employment misconduct.
Affirmed.

1 In reaching this conclusion, we consider only instances when Scott was absent or late for
unknown reasons. We do not consider Scott’s additional absences due to illness and FMLA
leave that the ULJ found were pr operly reported to his employer . Minn. Stat. § 268.095,
subd. 6(b)(7), (8).

2 Scott also argues that Artistic Finishes was retaliating again s t h i m f o r b e i n g a
whistleblower. This issue was not raised before the ULJ. Acco rdingly, we decline to
address this argument. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) (holding
that a party generally may not raise a new issue on appeal).